WASHINGTON — The Biden administration is calling for the creation of a joint tribunal in which Ukraine and international allies would try Russian leaders for crimes of aggression, but some human rights lawyers worry the plan has a fatal flaw:
It might shield President Vladimir V. Putin from prosecution.
Beth Van Schaack, the State Department’s ambassador at large for global criminal justice, said on Monday that the administration supported the formation of “an internationalized national court” in which the United States and other allies would assist Ukrainian prosecutors in bringing cases against Russian leaders for the crime of aggression, or illegally invading another country.
“We are committed to working with Ukraine, and peace-loving countries around the world, to stand up, staff and resource such a tribunal in a way that will achieve comprehensive accountability for the international crimes being committed in Ukraine,” she said during a war crimes conference at Catholic University in Washington.
Even as her remarks represented one of the most emphatic statements to date indicating U.S. support for prosecuting the crime of aggression, it also underscored the challenge of seeking to hold world leaders liable for their actions while they remain in power. By also establishing clear limits on how far the administration is willing to go, Ms. Van Schaack acknowledged its reluctance to create a precedent that could pave the way for a similar court to prosecute American leaders.
Critics of Russia’s invasion of Ukraine have debated rival proposals for holding Russian leaders accountable over the war, including establishing a hybrid court rooted in the Ukrainian system, with international elements, or creating a purely international chamber with jurisdiction over the crime of aggression.
While details remain to be worked out and would likely require changes to Ukrainian law, legal specialists say, a hybrid court could include both Ukrainian and international judges, and have jurisdiction over the crime of aggression under both Ukrainian and international law. It could also convene outside the war zone, including at The Hague.
Ukraine, like other countries, allows sitting heads of state to claim immunity from prosecution. In setting up the proposed hybrid court, Ukraine’s legislature could make an exception, but if Mr. Putin were ever arrested and brought before the court, his lawyers could argue that the exception was illegitimate.
David J. Scheffer, who served as the U.S. ambassador at large for war crimes issues from 1997 to 2001, said the State Department’s proposal of a joint tribunal rooted in Ukrainian law fell short.
The State of the War
“This is disappointing,” added Mr. Scheffer, who has called for a special international tribunal, not a national or hybrid court, to prosecute Russian leaders.
Several former diplomats and academics want the United Nations General Assembly to set up a purely international judicial institution like the International Criminal Court at The Hague, which prosecutes war crimes and has ruled that it need not honor immunity for sitting heads of state. They argue that such a new court could cite that precedent, making it harder for Mr. Putin to invoke immunity and get a case thrown out.
(Aggression is different than war crimes, which involve atrocities committed during a war regardless of the legitimacy of the conflict.)
“Aggression is a crime perpetrated by leadership; if the leaders have immunity, what are we even doing?” said Jennifer Trahan, a global affairs professor at New York University who favors a tribunal independent of Ukraine’s judicial system. “We are at a Nuremberg moment. Do we really want to deter aggression and the use of force? If we do, we have to have a real deterrent response.”
But Harold Hongju Koh, a professor at Yale Law School who served as a top lawyer in the State Department in the Obama administration, argued that a hybrid tribunal, modeled after a similar court that tried leaders of the Khmer Rouge in Cambodia, could be up and running far quicker.
Mr. Koh noted that even under a purely international model, the issue of overcoming immunity for sitting heads of state is far from assured.
“The best should not be the enemy of the good,” Mr. Koh said. “A hybrid court has the advantage that such a court has actually worked. The Ukrainians actually have a prosecutorial unit that is working and trying cases. Do you want to get on a train that is going somewhere and see if it can get you where you want to go, or wait for an entirely new train to be built? Why not get on the train?”
Vedant Patel, the State Department spokesman, said on Tuesday that the new approach should not be seen as “an alternative or replacement” for activities by the International Criminal Court. “What this is, is another mechanism in which we support all international efforts to to examine atrocities,” he said.
This month, the International Criminal Court issued an arrest warrant accusing Mr. Putin and one of his top officials of unlawfully abducting Ukrainian children and transporting them to their country.
But that tribunal lacks jurisdiction to prosecute the separate crime of aggression against citizens of countries that are not a party to its treaty and have not signed on to an amendment that added aggression to its purview. Russia has not, and neither has the United States.
Some in the United States — especially at the Pentagon — also think the court should not exercise jurisdiction for the other offenses in its purview, like war crimes, against citizens of countries that are not a party to the treaty that created it.
But late last year, Congress amended a law to allow support for the court’s investigations arising from the war.
Still, the Biden administration is split over how to work with the court. While agencies like the Justice and State Departments support sharing information with it about Russian war crimes, the Pentagon has objected, fearing creating a precedent that could make it easier to prosecute Americans in the future.
In her remarks, Ms. Van Schaack appeared to obliquely refer to the dispute, noting “the implementation of the new legislative amendments to help the I.C.C. prosecutor is under review.”
Ms. Van Schaack, who helped investigate war crimes in Rwanda and the former Yugoslavia, said American officials and European partners, working with the newly created International Center for the Prosecution of the Crime of Aggression in The Hague, would “build criminal dossiers against those leaders responsible for planning, preparing, initiating or waging this war of aggression for future trials.”
The Justice Department is increasingly focused on a similar supporting role, providing Ukraine’s prosecutors with logistical help, training and direct assistance in major cases.
Apart from assisting prosecutors in Ukraine, any collected evidence could be used for war crimes and genocide prosecutions, and might even spur further sanctions against Moscow, she added.
Mr. Scheffer, who helped create international judicial systems to prosecute defendants from Rwanda, Sierra Leone and the former Yugoslavia, said that nesting prosecutions in a national court — as opposed to creating a completely international court — could marginalize the effort to hold Mr. Putin responsible.
“I am skeptical there will be a lot of financial support for an internationalized Ukrainian court, by the time they get around to bringing charges,” Mr. Scheffer said.
Michael Crowley contributed reporting.